There was a lively debate in the comments section of my October post titled: The Army CCA applies Cimball Sharpton to (erroneously) affirm larceny from a debit card holder. In my post I argued that a service member’s fraudulent use of another person’s debit card was a larceny from the merchants where the card was used, and not from the account holder, even when the fraudulent use of the card caused a reduction in the account holder’s balance, and I concluded that the Army CCA was wrong to affirm (in a published opinion) an appellant’s guilty plea to larceny from another service member based on such fraudulent activity.
That conclusion drew some thoughtful opposition in the comments section, but I stuck with my analysis. The appellant petitioned CAAF for review on December 3, 2014 (No. 15-0202/AR), so it will likely be a few more months before we learn if I was right.
But an article published in the November issue of the Army Lawyer adds support to my argument:
In the case of a debit card relationship, an account holder has deposited money with the bank against which the POS or ATM transactions are drawn; however, due to the military courts’ application of commercial law principles, the account holder is not the “owner” of her deposits within the meaning of Article 121. Absent special arrangements, the title to the money deposited is transferred to the bank when a deposit is made by the account holder into his her account.
This is true because money deposited with a financial institution, absent special arrangements, is considered a general deposit. In the case of general deposits, “[t]he general transaction between the bank and a customer in the way of deposits to a customer’s credit, and drawing against the account by the customer, constitute the relation of creditor and debtor.” As such, there “is nothing of a trust or fiduciary nature in the transaction, nor anything in the nature of a bailment . . . or in the nature of any right to the specific monies deposited.” Thus, the account holder has neither title to nor possession of the money in his or her debit account—only an agreement from the bank “to pay an equivalent consideration when called upon by the depositor in the usual course of business.”
The same is true in the case of a credit card agreement. The relationship between the bank and the account holder is one of creditor and debtor—the roles being reversed such that the account holder, not the bank, is the debtor. Just as in a debit card relationship, the credit-card account holder has neither title to nor possession of the line of credit that is extended by the bank.
Major Benjamin M. Owens-Filice, “Where’s the Money Lebowski?” — Charging Credit and Debit Card Larcenies Under Article 121, UCMJ, Army Law., August 2014, at 3, 9 (direct link to article).
The article is a comprehensive review of this topic, and it includes a handy chart on the last page. I think the article is entirely consistent with my October post, and I encourage anyone litigating a larceny case to read both the article and my post.